Wiseman v. Zorn

• Decision Date: 09 January 1958
• Docket Number: No. 13125,13125
• Citation: 309 S.W.2d 253
• Parties: Cope WISEMAN et al., Appellants, v. Norman H. ZORN et al., Appellees.
• Court: Texas Court of Appeals

Page 253

309 S.W.2d 253

Cope WISEMAN et al., Appellants, v. Norman H. ZORN et al., Appellees.

No. 13125.

Court of Civil Appeals of Texas, Houston.

Jan. 9, 1958.

Rehearing Denied Jan. 30, 1958.

Robert L. Sonfield, Houston, for appellants.

Wm. N. Bonner, Houston, for appellees Zorn and Head.

Albert J. De Lange, C. M. Hudspeth, E. J. Pitman, for appellees Stewart Title Co. and Stewart Title Guaranty Co.

Stewart, Burgess & Morris, Buford T. Morris, J., Houston, for appellee P. C. Stewart.

WERLEIN, Justice.

Appellants, Cope Wiseman and John G. Davis, brought this suit against appellees, Norman H. Zorn, H. J. Head, Stewart Title Guaranty Company, Stewart Title Company, and P. C. Stewart, to recover a broker's commission claimed to be due them for having obtained a purchaser of the property described in the exclusive sales agreement attached to and made a part of the petition. The face of such exclusive sales contract reads as follows 'Cope Wiseman

Real Estate

Exclusive Sales Contract

1024 South Shaver

Office, GRand 2-1139

Date January 17, 1955

'To Cope Wiseman

'In consideration of your agreement to list in your office the real estate described on the reverse side of this card, and of your efforts to find a purchaser for the same, I hereby grant to you the exclusive right to sell or to contract to sell said real estate within a period of 15 days from date hereof, for the price and upon the terms stated on the reverse side of this card and I hereby agree to furnish complete abstract or title insurance policy of title to said real estate and to execute a deed of general warranty in due form of law, conveying a marketable title to the same, in which my wife or husband shall join, to such person as you shall have sold or agreed to sell the same, and for your services, I hereby agree to pay you the regular 5% commission on the purchase thereof, the receipt of which is hereby acknowledged, upon any sale or contract for sale of said real estate made while this agreement remains in force, whether such sale be made by yourselves or by myself or whether at the price and upon the terms stated on the reverse side of this card, or at a different price or upon other terms accepted by me.

'It is further agreed that upon any sale or contract for the sale of said real estate made by me after the termination of this agreement to any person with whom you have had negotiations for sale of the same and of which I shall have been advised, I will pay you the full rate of commission. as above indicated.

'You are hereby authorized to place one neat 'For Sale' sign on said real estate and to remove all other signs therefrom.

Norman H. Zorn--HU-6-3168

Owner H. J. Head--HU-6-7402

Address ________

Lot _____

Block _____

Associate Cope Wiseman

100 acres--NW 1/4 Section of Survey #7--Landscrip 132--to WCRR--Vol 326--Page 347--Deeds & Records

10 acres NW 1/4 of NW 1/4 of SW 1/4 of WCRR--Co. Survey #7--Block 7--Abst 894'

Signed H. J. Head

Signed Norman H. Zorn

Owner

On the reverse side of the exclusive sales contract appears the following:

'Vacant Lots

Acreage

Location East End of Crenshaw road--110 acres

Suitable for ________

Restrictions ________

Type of Soil Sandy Loam----

Trees ________

Price 800.00 per acre

Terms ________

REMARKS Ten Acres clear--100 acres has 15,000 loan, 5% interest--Payable $5,000 May, 1955, $5000 May, 1956 $5000. May, 1957, to be assumed.--Mineral rights 15/16 go with sale.'

Appellees Zorn, Head, and Stewart excepted to plaintiffs' petition on the ground that said exclusive sales contract failed to describe any real estate sufficiently to identify the same, in light of Sec. 4, Art. 3995, Art. 3995a, and Sec. 22 (now Sec. 28) of Art. 6573a, Vernon's Ann.Tex.Civ.St.

On sale of the property was made within the period of 15 days for which the exclusive sales agency was given, but thereafter a sale was made to appellee, P. C. Stewart. Appellants claimed they were the procuring cause of the said sale to Stewart and were entitled to their commission even though the sale was made after the expiration of the 15 day period since the sales contract provided that a 5% commission would be paid upon any sale of the real estate after the termination of the agreement to any person with whom said agent had negotiations for the sale thereof within such period and of which said Norman H. Zorn and H. J. Head had been advised.

On April 5, 1956, all parties being present, the special exceptions of Zorn and Head and of P. C. Stewart were considered by the court and sustained. The order, signed and entered by the court, also dismissed the first amended original petition of appellants, and adjudged all costs against them.

After said order of April 5, 1956, was entered by the court, appellants on September 12, 1956, filed their second amended original petition. Thereafter the appellees Zorn and Head filed what they termed an answer to the second amended original petition of appellants, and appellee Stewart filed a second amended original answer. In such answers appellees adopted by reference the special exceptions contained in answers they had previously filed to appellants' original petition and first amended original petition. After said amended answers were filed, appellants, learning that the court had entered the order of April 5, 1956, dismissing the suit instead of merely sustaining appellees' exceptions, filed a motion to set aside the order of April 5, 1956, and due notice was given on such order for appellees to appear in court on October 29, 1956. On that day appellants filed a motion to correct the order entered by the court under date of April 5, 1956, dismissing their suit.

On October 29, 1956, all parties at interest being present, the court entered an order correcting the previous order on exceptions dated April 5, 1956, the court stating that on that day the special exceptions of the appellees Stewart, Head and Zorn, were sustained, but that the order prepared and presented to the court by counsel for appellees Head and Zorn further provided that appellants' suit was dismissed, which was not adjudged by the court. The court further found that the order previously rendered on said special exceptions should be corrected to correspond to the actual judgment of the court which only sustained the special exceptions and gave plaintiffs leave to amend. The court then ordered that the previous order be corrected to sustain the special exceptions of Head and Zorn and Stewart, and that the part of the order of April 5, 1956, dismissing plaintiffs' suit be stricken therefrom. To this order appellees duly objected and excepted.

Then came on to be heard on the same day the exceptions of appellees previously filed an actually addressed to previous petitions and amended petitions of the appellants, but which were adopted by reference in said amended answers and were applicable alike to plaintiffs' second amended original petition; and the court, after argument of the parties, sustained such exceptions, the court being of the opinion that the exclusive sales contract was void and unenforceable for the reason that the description of the property in question was not sufficient to identify it.

After said exceptions were sustained, appellants having declined to further amend, the court dismissed their second amended original petition on the ground that it was insufficient and ordered that 'Plaintiffs take nothing by their said pleading, and as to the Plaintiffs' cause of action all Defendants will go hence without day and recover their costs of the Plaintiffs.'

Next, there came on to be considered by the court at the same hearing the remaining issues between the parties, and the court, on motion of Zorn and Head for summary judgment, found that Stewart Title Company had on hand $4,038.30 that had been withheld by it when the sale to Stewart was consummated, said company having received notice from appellants that they were claiming a commission in that amount. The court found that Stewart Title Company was a stakeholder as to such money and that appellees Zorn and Head were entitled thereto. Judgment was entered accordingly and all costs were taxed against appellants, Cope Wiseman and John G. Davis, jointly and severally.

Appellants duly excepted to the judgment of October 29, 1956, entered November 21, 1956, and perfected their appeal to this Court.

Appellee Stewart has moved to dismiss the appeal, alleging that the appeal is taken from the judgment signed and entered November 21, 1956, whereas on April 5, 1956, the court had rendered a final judgment in the same cause dismissing plaintiffs' first amended original petition, and such judgment was allowed to become final thirty days after the date thereof, no appeal having been perfected therefrom. Appellee Stewart further alleged that after the expiration of more than six months after April 5, 1956, appellants on October 29, 1956, filed their 'Motion to Correct Order', and that the same did not contain any of the essential elements of a bill of review; that, therefore, the trial court had no jurisdiction to enter the order of October 29, 1956, purporting to correct its previous order of April 5, 1956, nor did it have jurisdiction to render judgment dated November 21, 1956, from which appellants have appealed.

The motion filed by appellants to correct the order of April 5, 1956, is not a bill of review. While it is not so labeled, it is in fact a motion to correct an order previously entered by the court and to enter a correct order nunc pro tunc. In the order entered by the court correcting the order of April 5, 1956, the court very clearly states that the order of April 5, 1956, prepared and presented to the court provided that said suit was dismissed, but that such was not adjudged by the court. The court further found that said order on said special exceptions should be corrected to correspond with the actual judgment of the court which in fact only...